Parsing Chimpy's defense

From the New York Times [1]:

A National Security Agency [2] program that listens in on international communications involving people in the United States is both vital to national security and permitted by the Constitution, a government lawyer told a judge here today in the first major court argument on the program.

But, the lawyer went on, addressing Judge Anna Diggs Taylor of the Federal District Court, "the evidence we need to demonstrate to you that it lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union [3] challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.

So yes, we are currently in the process of breaking the law and have done so on countless occasions prior. But since we refuse to defend ourselves (on the grounds that our defense would be incriminating) then the only solution is to drop all charges. Yeah. I think I’ll try that one next time I get a speeding ticket. Sorry officer, I had to speed because it was necessary to preserve my safety. But I can’t tell you why since that would get me in trouble. So you might as well just let me off with a warning.

The case boiled down to two legal questions, [Judge] Beeson said. The first is whether the plaintiffs have suffered the sort of direct injury necessary to establish that they have standing to bring suit. The second is whether President Bush was authorized by Congress or by the Constitution to violate the Foreign Intelligence Surveillance Act, a 1978 law that forbids surveillance of people inside the United States without a warrant.

Note, by the way, that the Judge’s parsing of the defense’s case makes no mention of whether or not they broke the law. In fact, the absence of such a consideration holds a de facto implication that a felony had been committed. The only question was whether or not Bush had some defensible authorization to violate this law or whether or not the plaintiff was personally affected by it. However, since the defense refuses to release details, such allegations are nearly impossible to ascertain.

The Bush administration has acknowledged that it has not complied with the law but has said that a Congressional authorization in 2001 to use military force against Al Qaeda [4] and the president's inherent constitutional powers allowed him to violate it.

When Congress made that authorization, we all knew there would be trouble. A one line, broad authorization to pursue ‘terrorists’ basically gave Bush a blanket permission to do just about anything he wants as long as he can somehow say it was related to 9-11. Newsflash, 9-11 is part of our history and everything since then can be related to it in some form. Moreover, I’m not sure that the Congress had any legal standing with which to abdicate their constitutional obligation to be the sole body able to declare war.

Even portions of the government's brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government "lodged" the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today's hearing, she shook her head no when Mr. Coppolino asked her whether she had "had a chance to review our classified submission."

So this is how a totalitarian government complies with a supposedly independent judiciary – we’re not coming to you, you can come to us. It reminds me of Aurthur Dent being told that he should have known about Earth’s impending destruction since it was clearly posted in Alpha Centauri.

Calling the plaintiffs' position extreme, Mr. Coppolino said the 1978 law cannot constitutionally constrain the president when the nation's safety is at risk.

"The president's constitutional power doesn't simply disappear when Congress enacts a statute," Mr. Coppolino said. "Surveillance of an enemy is indeed a necessary incident of war."

Correction. We are not a country at war, we are a country whose military is at war. We have never been asked to make any sacrifices, nor have we ever been engaged on the details of this supposed war, who specifically it is targeting, and what the parameters are for defining victory.

Ms. Beeson said the 1978 law, often called FISA, gave the president all the flexibility he needed. "If FISA didn't work," she said, "the proper procedure under our constitutional system was for the president to go back to Congress and ask it to amend the law."

As the proverb goes, 'no shit, Sherlock.' To which the government replies, 'Keep trying, Watson.'

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